A Primer on Intellectual Property · Registration is costly, subject to maintenance and continued use · May not protect against sale of similar product under different mark What Assets can a Trademark Protect? 154 Trademarks protect branding devices that establish a product as coming from your company and no other. Aside from your company name and the name of your games and technology, if you have a distinctive sound that plays at initialization of your game, a logo, a mascot--all of these can be trademarked. The names, character designs, and slogans of original IP, characters, weapons, and other valuable marks that are vulnerable to exploitation by others (in other words, whatever could generate revenue through merchandising or entertainment) should be trademarked (example: Conan the Barbarian). Patent A patent is the boss of the IP world. It gives its owner a monopoly over a new technology, which can be a powerful lever against other companies. Unlike copyrights, the patent protects the ideas and even applied algorithms, not just the set of code used to implement them. Unlike trade secrets, a patent protects against a third party independently developing the same technology; with a patent, you can prevent any other third parties from using your technology. The price an inventor pays for the exclusivity, which lasts 20 years for software, is that the patent is published and its inner workings made available for the public to see. There are three main ways a patent can backfire: · A competitor may read the patent application and be able to manipulate it to create a new tech- nology that does not infringe, but still achieves the benefits of the patented advance. · The U.S. generally awards patents to the first inventor, not the first to file. A company may apply for and publish a patent only to have it overturned by another company who can prove they invented it first and had been using it under trade secret protection. · If a company is not proactive about its international patent portfolio , registration pirates may register the patents abroad, forcing the company to buy its patents back to do business abroad. Because of their exclusionary nature, patents tended to have a bad name in the software develop- ment world, which emphasizes sharing and developing knowledge. The brouhaha over "business method" patents that many believe were not original enough to merit a monopoly, like Amazon's "One click" shopping or Priceline's binding bids, has contributed to this taint. For these reasons and the relatively high cost of applying for patents (at least $10,000), many software developers rely on trade secrets and copyrights to protect their source code, even for technologies like engines. There are still many proponents for patenting software. They argue that: · There is no substitute for exclusive protection of the concepts, methods, and ideas, because the copyrights are easily violable. · A patent owner may always elect to give royalty-free licenses, but for business purposes should have the option of excluding competitors from using its innovation. · Compared with the cost of developing the asset, a patent is a cheap way to protect it. · Owning a patent still has cachet with investors, as it shows a legally responsible company that has a lock on a competitive advantage (depending, of course, on the quality of the patented technology. · Patents are a good defense against infringement suits from competitors, enabling a company to cross-sue and settle by the two parties agreeing to a royalty-free license of the oth-ers' patent.